State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1061

State of Minnesota,
Respondent,

vs.

Moses Woods,
Appellant.

Filed May 18, 2020
Reversed and remanded
Worke, Judge

Hennepin County District Court
File No. 27-CR-18-16448

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Pres iding Judge; Worke, Judge; and Larkin,
Judge.
S Y L L A B U S
The amelioration doctrine applies to th e 2019 sentencing guidelines provision
altering the determination of when a prior conviction has decayed for calculating criminal
history, which requires that a current offens e date be established by the fact-finder or
through an admission by the defendant.

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O P I N I O N
WORKE, Judge
Appellant challenges the sentence imposed for his first-degree criminal-sexual-
conduct conviction, arguing that he is entitled to the benefit of a change in the sentencing
guidelines that would reduce his criminal-histo ry score and sentence duration. We agree
that the change in the sentencing guidelines applies to appellant’s sentence; however, based
on this record, we cannot determ ine if appellant is entitled to a reduction in his criminal-
history score. Accordingly, we reverse and remand for proceedings consistent with this
opinion.
FACTS
On June 29, 2018, appellant Moses Woods was charged with tw o counts of first-
degree criminal sexual conduct. See Minn. Stat. § 609.34 2, subds. 1(a), 1(h)(iii) (2010).
The complaint alleged that on multiple occasions between January 1, 2012, and March 26,
2018, Woods sexually penetrated his girlfriend’s daughter, a child under the age of 13 and
more than 36 months younger than Woods.
According to the comp laint, the victim reported that in 2012, when she was six or
seven years old, Woods began “touching on her.” She reported that, over the years, Woods
began putting his penis in her mouth and his mouth on her vagina. Because of the multiple
acts of penetration alleged, and because Wood s has a prior first-degree criminal-sexual-
conduct conviction, the state intended to seek an aggravated sentence in this case.
On January 22, 2019, Woods pleaded guilty to count one, first-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a). The state dismissed count

3
two and withdrew its motion for an aggravated sentence. In establishing the factual basis
supporting Woods’s guilty plea, the following exchange occurred between Woods and his
attorney:
Q: [Y]ou continue to tell me [that] you don’t agree with
everything that’s contained in the complaint and
everything that’s contained in the police reports;
correct?
A: No.
Q: You don’t, do you?
A: No.
Q: However . . . you were w illing to admit . . . . [That]
[b]etween . . . January 1, 2012 and March 26 . . . 2018,
you were residing with a woman whose initials are
R.M.; is that correct?
A: Yes.
Q: And she has a minor daught er whose initials are S.M.;
is that also true?
A: Yes.
Q: And during that time frame, from January of 2012
through March 26th of 2018, you were living with that
family for . . . most of that time; is that true?
A: Yes.
. . . .
Q: During this period of time . . . would you agree that on
a number of occasions . . . more than one, not as many
as they claim, but on more than one occasion you put
your penis in S.M.’s mouth; true?
A: Yes.
Q: And I think you told me th at happened two or three or
four or maybe five times, right?
A: Yes.
Q: They’ve alleged a lot more often and some other things
which you’ve disagreed with, but you do freely
acknowledge and admit that during this period of time
you placed your penis in S.M.’s mouth?
A: Yes.
Q: And during that period of time she was somewhere
between 6 or 7 and 13 years old; correct?
A: Yes.

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A presentence investigation (PSI) wa s conducted on March 8, 2019. Woods
disputed the timeframe in the complaint; he stated: “I didn’t start fooling with her until she
was 11,” which would have been in 2015. The PSI stated that Woods “could not recall
how many instances of sexual abuse occurred, but finally settled on between four and ten,
over a time frame of about a year.”
The PSI shows that Wood s’s criminal-sexual-conduct conviction fro m 1994 was
discharged on March 11, 2014. Woods’s pres umptive sentence of 234 months in prison,
with a range between 199-280 months, was re ached using four criminal-history points,
including three points for the 1994 first-degree criminal-sexual-conduct conviction. On
April 12, 2019, the dist rict court sentenced Woods to 280 months in prison. This appeal
followed.
ISSUE
Does a change in the sentencing guidelines regarding the decay of a prior conviction
apply to the calculation of appellant’s criminal-history score?
ANALYSIS

Woods argues that his case must be rema nded for resentencing because a change in
the sentencing guidelines reduces his criminal-history score and presumptive sentence. A
sentence based on an incorrect criminal-history score is an illegal sentence that may be
corrected at any time. State v. Maurstad , 733 N.W.2d 141, 147 (Minn. 2007). When a
defendant’s sentence is based on an incorrect criminal-history scor e, his case must be
remanded for resentencing. State v. Provost , 901 N.W.2d 199, 202 (M inn. App. 2017).

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The interpretation of the sentencing guidelines is a question of law reviewed de novo. State
v. Strobel, 932 N.W.2d 303, 306 (Minn. 2019).
Woods’s criminal-history score includes three points for his 1994 criminal-sexual-
conduct conviction. Woods argues that under the current sentencing guidelines, the prior
conviction would be considered decayed, and his criminal-history score would not include
these three points. The parties agree on much of the analysis; they part ways, however, on
one decay factor that leads to their diff erent conclusions regarding the appropriate
resolution of this case.
First, the parties agree that under the senten cing guidelines that were in effect when
Woods was sentenced in 2019, his sentence was legal because his 1994 conviction had not
decayed and was appropriately included in the calculation of his crimin al-history score.
When Woods was sentenced, the guidelines fo r calculating a criminal-history score
prohibited the use of a “prior felony sentence or stay of imposition following a felony
conviction . . . if a period of fifteen years ha s elapsed since the date of discharge from or
expiration of the sentence to the date of th e current offense.” Minn. Sent. Guidelines
2.B.1.c. (2018). Woods was discharged after he completed probation on March 11, 2014,
and the date range of the current offense is between January 1, 2012, and March 26, 2018.
A period of 15 years has not elapsed between these dates. Thus, the parties are correct that
Woods’s sentence was legal when imposed.
Second, the parties agree that the change in the sentencing gu idelines applies to
Woods’s case because his case was not fi nal before the change took effect. See State v.
Kirby, 899 N.W.2d 485, 496 (Minn. 2017) (stating, under amelioration doctrine,

6
amendments to sentencing guidelines apply to cases that are not final when the amendment
mitigates punishment and the legislature does not state a clear intention to abrogate the
doctrine). We agree with the parties that the change in th e sentencing guidelines applies
to Woods’s case.
Third, the parties agree that two of the three requirements under the current
sentencing guidelines apply to Woods’s case. Effective Augu st 1, 2019, th e sentencing
guidelines regarding the calculation of a criminal-history score were amended. The section
on the decay factor now reads:
In computing the criminal hi story score, a prior felony
sentence or stay of imposition following a felony conviction
must not be used if all the follo wing, to the extent applicable,
occurred before the date of the current offense:
(1) the prior felony sentence or stay of imposition
expired or was discharged;
(2) a period of fifteen years elapsed after the date of
the initial sentence fo llowing the prior
conviction; and
(3) if the prior felony sentence was executed, a
period of fifteen years elapsed after the date of
expiration of the sentence.

Minn. Sent. Guidelines 2.B.1.c. (Supp. 2019). The parties agree that the third requirement
applies only to executed sentences; Woods wa s convicted on March 9, 1994, received a
stay of imposition for 20 years, and, although he had a probation violation in 2004, he was
continued on probation and disc harged on March 11, 2014, without having his sentence
executed. The third requirement does not apply here.
Finally, the parties agree that the sec ond of the two applicable requirements has
been met. The second requirement states th at a prior felony will not be included in a

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criminal-history score when “a period of fifteen years elapse d after the date of the initial
sentence following the prior conviction” and the date of the current offense. See id. Woods
received a stay of imposition on March 9, 1994 . The current offense has a date range
between January 1, 2012, and March 26, 2018. Fifteen years after the initial sentence date
(March 9, 1994) occurred on March 9, 2009. Thus, 15 years had elapsed between the initial
sentencing on March 9, 1994, and the current offense date ra nge beginning on January 1,
2012.
The parties disagree, however, as to th e first requirement of the decay factor—
whether Woods’s stay of imposition was discharged before the date of the current offense.
See id. Woods argues that he sa tisfied the first requirement because he was discharged
when he completed probation on March 11, 2 014, and the plea record does not establish
that the offense occurred on or before March 11, 2014.
The state argues that the first requirement is not satisfied because “an overlap of two
years [exists] between the current offense da te range and discharg e of [Woods’s] prior
sentence.” The state claims that Woods “fre ely admitted at the plea hearing that he
repeatedly sexually penetrated S.M. from January 1, 2012, to March 26, 2018.” The state
asserts that the record establishes that “penetration occurred between January 1, 2012 and
March 11, 2014.” But that is not accurate.
According to the co mplaint, the victim alleged that Woods began “touching on her”
when she was six or seven years old, and that “over the years,” he began penetrating her.
At the plea hearing, Woods indicated that he did not agree with the allegations in the
complaint regarding the frequency of the abuse, but he did agree that “on more than one

8
occasion [he] put [his] penis in [the victim]’s mouth.” Woods indicated that the penetration
occurred “during that period of time [when the victim] was somewhere between 6 or 7 and
13 years old.” Thus, the record establishes th at Woods penetrated the victim, but it does
not establish when, specifically, Woods penetr ated the victim between January 1, 2012,
and March 11, 2014.
The state claims that State v. Washington supports its position that the record
establishes when the ille gal conduct occurred. See 908 N.W.2d 601 (Minn. 2018). In
Washington, the defendant was charged with failing to register as a predatory offender. Id.
at 604. The complaint alleged an offense date range between June 9, 2013, and August 4,
2015. Id. The district court foun d the defendant guilty, and at the sentencing hearing
determined that the defendant had five cr iminal-history points , which included a 1996
conviction. Id. at 605. Washington appealed his sentence, arguing that his criminal-history
score should not have incl uded the 1996 conviction because it had decayed. Id.
Washington claimed that 15 years had lapsed between the date that his prior sentence
expired in 1999 and the date of the current offense, which he claimed was August 4, 2015,
the last date in the offense date range. Id.
The supreme court agreed with this court that failing to register is a continuing
offense because the statute imposes a “c ontinuing obligation” on the offender. Id. at 606
(determining that predatory-offender-registration statute imposes a continuing obligation
and listing several other statutes with a conti nuing obligation). The supreme court stated
that the sentencing guidelines “do not define what is meant by ‘the date of the offense.’”
Id. at 607. But the supreme court determined that the only reasonable interpretation is that

9
the “entire range of dates over which a continuing crime is committed constitutes ‘the date
of the current offense.’” Id. at 607-08.
The problem with th e state’s reliance on Washington in this matter is that Woods
did not plead guilty to a cont inuing offense. While Woods was charged with violating
Minn. Stat. § 609.342, subd. 1(h)(iii), which criminalizes sexual abuse when the actor has
a significant relationship to the victim, the victim is under 16 years of age, and the sexual
abuse involved multiple acts over an exte nded period of time, he pleaded guilty to
committing one act of sexual penetration. See Minn. Stat. § 609.342, subd. 1(a) (stating
that a person is guilty of first-degree criminal sexual conduct when he sexually penetrates
the victim who is under 13 years of age and he is more than 36 months older than the
victim). Unlike the defendant in Washington, who violated the registration statute every
day he failed to register because registrati on is a continuing obligation, Woods did not
commit a criminal act every day over the peri od of time he sexually abused the victim.
Thus, because Woods did not pl ead guilty to a continuing offe nse, the state’s reliance on
Washington is misplaced.
Woods cites State v. Goldenstein , arguing that when doubt exists as to when a
defendant’s criminal act occurre d, the issue should be resolv ed in the defendant’s favor.
See 505 N.W.2d 332, 347-48 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In
Goldenstein, both defendants were convicted of firs t-degree criminal sexual conduct, and
one defendant was also convicted of se cond-degree criminal sexual conduct. Id. at 335.
The offense date range was May 1987 through May 1990. Id. Among other things, the
Goldensteins challenged their sentences, arguing that they should have been sentenced

10
under the 1987 guidelines, rather than the 1989 guide lines, which increased the
presumptive sentence range. Id. at 347. In determining the date of the offense, which this
court noted was “important for sentencing purp oses,” this court stated that, even though
there was an offense date range, the defenda nts were “convicted of a single offense
occurring sometime during a three-year period.” Id. This court determined that the district
court erred in sentencing as though the “single incident of sexual misconduct occurred after
August 1, 1989,” because no trial testimony addressed the date of offense. Id. at 348.
Similarly here, Woods pleaded guilty to a single offense occurring sometime
between January 1, 2012, and March 26, 2018. While Woods admitted to committing more
than one criminal act during this timeframe, he did not specifically admit to committing an
act between January 1, 2012, and March 11, 2014. Because the record does not show when
Woods committed the act to which he pleaded guilty, there is uncertainty as to whether he
was discharged from probation before the date of the current offense.
Another case that supports Woods’s ar gument that a specific offense date is
necessary in calculating his correct sentence is State v. DeRosier , in which the supreme
court affirmed this court’s reversal and rema nd of DeRosier’s sentence because the jury
did not find an offense date. 719 N.W.2d 900, 901 (Minn. 2006). At DeRosier’s jury trial
on first-degree criminal-sexual-conduct charges, the victim testified that sexual encounters
began in June 2000 and that she was certain that one encounter occurred in August 2000.
Id. at 901-02. The district cour t instructed the jury that to satisfy one of the elements of
the offense, it had to find that DeRosier’s c onduct took place “on or about June, July, or
August 2000.” Id. at 902. The jury found DeRosier guilty, and the district court sentenced

11
him to 144 months in prison using August 2000 as the offense date and the 2000 sentencing
guidelines; if the district court had used an earlier offense date and an earlier version of the
sentencing guidelines, the presumptive sentence would have been 86 months in prison. Id.
The supreme court determined that the dist rict court erred in deciding the date of
DeRosier’s offense and imposing a longer sentence than the pre-August presumptive
sentence. Id. at 903. The supreme court decided that the district court’s decision violated
Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531 (2004), which requires any fact
that increases a sentence to be found by a jury. Id.
Similarly here, Woods’s sentence include d three points for the prior criminal-
sexual-conduct conviction. These points would not factor into his cr iminal-history score
if his prior offense had decayed . Under the decay-factor anal ysis, an offense date for the
current offense is necessary in determining whether a prior offense is decayed. Here, there
was no jury to make a current-offense-date finding, and Woods did not admit to an offense
date when he pleaded guilty, but the determination of the current offense date dictated the
length of Woods’s sentence.
Another case that lends support, albeit limited because it is unpublished, is State v.
Helm. See No. A11-0144, 2012 WL 3792101 (Minn. App. Sept. 4, 2012). In that case, the
defendant was charged with mu ltiple counts of second-degree criminal sexual conduct
occurring between January 1, 2006, and August 1, 2009. Id. at *1. The defendant pleaded
guilty and the district court sentenced him according to the 2008 guidelines. Id. at *2. The
defendant challenged his sentence, arguing that he should have been sentenced under the
2006 guidelines because the offense to which he pleaded guilty had a date range beginning

12
in January 2006. Id. at *4. This court rejected that argument because when Helm pleaded
guilty, he pleaded to an incident that occurred in August 2008. Id. The opinion states that
Helm entered his plea, “based on an inci dent that occurred in August 2008.” Id. at *2.
Helm “testified that he could recall the date of the incident because he and the victim were
decorating the house in preparation for a celeb ration of the wedding anniversary of [him]
and his then-wife. It was while they were decorating the house that [Helm] sexually
assaulted his then-11-year-old relative on the dining room table.” Id.
In Helm, although there was a date range, the defendant pleaded guilty to one
incident that occurred on a particular date. The record established the date and supported
the district court’s application of the 2008 guidelines. Here, there is a date range, but
nothing in the record supporting a date for one act of criminal sexual conduct. Accordingly,
we reverse and remand to the district court fo r further proceedings to establish an offense
date and resentencing. See State v. Outlaw , 748 N.W.2d 349, 356 (Minn. App. 2008)
(reversing and remanding for district court to determine whether out -of-state convictions
can be counted as felonies for an enhanced sentence), review denied (Minn. July 15, 2008).
D E C I S I O N
The 2019 revision to the sentencing guid elines modifying the decay of a prior
conviction applies to Woods’s case based on application of the amelioration doctrine.
Because the decay-factor analysis requires a fact-finding or admission regarding the current
offense date in order to determine whether Woods was discharged from probation before
the current offense was committed, and the record fails to establish the current offense date

13
within the date range as charged, we reve rse and remand for a determination of Woods’s
current offense date and resentencing.
Reversed and remanded.